The Peck-Ham Corp.

CLINTONVILLE SHOE CO 609 Clintonville Shoe Company, a Division of The Peck- ham Corporation and United Food and Com- mercial Workers Union, Local 214, Chartered by United Food and Commercial Workers Inter- national Union, AFL-CIO, CLC and Clifford Haws, Petitioner. Case 30-RD-745 28 September 1984 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER The National Labor Relations Board, by a three- member panel, has considered objections to a de- certification election held 20 December 1983 and the Regional Director's report recommending dis- position of them The election was conducted pur- suant to a Stipulated Election Agreement The tally of ballots shows 10 for and 45 against the Union, with 5 challenged ballots, an insufficient number to affect the results The Board has reviewed the record in light of the exceptions, has adopted the Regional Director's findings and recommendations, and finds that a cer- tification of results of election should be issued We are in full agreement with the Regional Di- rector's findings and conclusions that the Employ- er's campaign letters to employees were not objec- tionable and that no basis exists for setting aside this decertification election 1 Here, as in most cases involving the use of campaign literature, the line between the permissible and the impermissible con- duct is thinly drawn However, unlike our dissent- ing colleague, we are convinced that in this in- stance the Employer did not engage in objection- able conduct At issue in this proceeding are statements made in three letters that the Employer sent to the em- ployees during the course of the election campaign The first such letter was sent to employees on 9 December 1983 2 and it asked them to vote against the Union The letter went on to state that workers across the nation were throwing out unions and choosing to represent themselves and that the em- ployees could do the same It further advised em- ployees that they had the right to devise their own seniority and financial packages without union in- volvement The second letter was sent to employees on 14 December and had as its general theme economic conditions in the shoe industry This letter stressed 1 In adopting the Regional Director's recommendation on this Issue, we find It unnecessary to pass on his reference to A J Schmidt Go, 265 NLRB 1646 (1982) 2 All dates are in 1983 unless otherwise indicated the general decline in the Employer's industry It also asked employees to vote the Union out and predicted that, if the Employer agreed to the Union's contract proposals, it would be forced to close the plant within days The "proposals" the Employer was referring to there concerned the Union's campaign propaganda which listed the benefits it had achieved for other employees in the industry Attached to this letter was an interin- dustry memorandum entitled "Actions to Help the Domestic Footwear Industry" The memorandum, while silent regarding unionism, traced the decline of the industry and suggested ways to reverse the trend The last of the letters was sent to employees on 15 December and stated that the Employer was tired of the Union's president demanding that em- ployees be terminated Attached to the letter were excerpts from union letters to employees requesting dues owed and union letters to the Employer de- manding the termination of employees for nonpay- ment of dues As noted by our dissenting colleague, an employ- er may make a lawful prediction that unionization will result in plant closure However, the predic- tion must be based on objective facts so as to convey an employer's belief of the probable conse- quences of unionization NLRB v Gissel Packing Co, 395 U S 575 (1969) In the instant case we find that the letters and the attachments which the Employer sent its employees do nothing more than advise them as to the possibility of the plant clo- sure if the Employer were forced to agree to cer- tain contract proposals which the Union had circu- lated among employees The 9 December letter states simply and accurately that employees have a right to represent themselves and it contains no threats of interference with these rights Based on the economic situation in the shoe industry, the 14 December letter accurately predicts the probability of plant closure if the Employer accepted those contract proposals the Union was advocating The Employer thus enabled employees to make an ob- jective comparison of existing benefits and the con- sequences of accepting the union proposals which listed the benefits it had gained for other employ- ees in the industry Finally, the 15 December letter concerned the Union's efforts to terminate employ- ees for nonpayment of dues as opposed to plant closure and, as such, it was a matter that the Em- ployer could properly raise with employees There- fore, we conclude that the letters were based on objective facts and did not interfere with employ- ees' free choice in the election 272 NLRB No 96 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we adopt the Regional Director's recommendation to overrule the Union's objec- tions CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid bal- lots have not been cast for United Food and Com- mercial Workers Union, Local 214, Chartered by United Food and Commercial Workers Internation- al Union, AFL-CIO, CLC and that it is not the ex- clusive representative of these bargaining unit em- ployees MEMBER ZIMMERMAN, dissenting Unlike my colleagues, I would reverse the Re- gional Director's findings and recommendations and would set aside the election based on state- ments made in three preelection letters sent by the Employer to unit employees These statements con- stituted objectionable threats because they repeat- edly predicted, without factual basis, that job losses and plant closure would be a consequence of con- tinued unionization These threats interfered with the employees' free choice in the decertification election On 9 December 1983, a letter from the Employ- er to employees stated, among other things "Vote against the union and let's work together for your job security and future" and "Don't let this local cost you more money and your job security" (Em- phasis added ) Nowhere in this letter is there any objective explanation of why the loss of job securi- ty would be a probable consequence, beyond the Employer's control, of continued unionization Also the letter does not expressly or implicitly refer to any direct attempts by the Union to remove non-dues-paying employees from their jobs A 14 December letter from the Employer re- prised the theme of the earlier letter, urging VOTE THE UNION OUT—We would pre- dict that if we were to agree to the new con- tract proposals that the union has promised you, the factory would be forced to close in a matter of days The letter also claimed that the Employer had lost over $200,000 in 1983 and "hundreds of thousands in the previous year" Attachments to the letter re- ferred to 25 shoe factories closed in 1983 and fo- cused on efforts to combat the perceived threat of foreign competition to the domestic shoe industry The letter did not identify the "contract proposals" which allegedly threatened plant closure It like- wise did not present any evidence of a relationship between the Employer's losses and unionization, between the 25 plant closings and unionization, or between foreign competition and unionization On 15 December the Employer sent employees yet another letter and attachments, which focused mainly on the alleged ills of the Union's discharge demands in a union-security shop The final attach- ment to this letter bore no relationship to the union-security issue, however Instead, the attach- ment contained this comment by the Employer "Dick Eiden [the Union's president] can't guaran- tee you jobs Ask the former employees he repre- sented at the Red Owl last year" The attachment also republishes articles about the closing of three Red Owl food stores where employees had been represented by the Union There is no mention at all of the Union in any of the articles, much less is there any indication of the Union's responsibility for the store closings On the contrary, each article suggests that the closings resulted from the reorga- nization in bankruptcy of the Wickes Corporation There is no objective evidence of any relationship between the Wickes Corporation's misfortunes and the economy of the Employer or the domestic shoe industry Reviewing the Employer's campaign literature, the Regional Director correctly referred to the governing legal principle that an employer may predict the precise effects it believes unionization will have on the company "In such a case, howev- er, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control " NLRB v Gissel Packing Go, 395 U S 575, 618 (1969) Having identified the rule, the Regional Director then effectively permit- ted the Employer to break it With respect to the 9 and 15 December letters, the Regional Director found no objectionable threats because "the references to job security and termination in the text of said letters do not con- cern plant closure but rather respond to escalating dues and to the Union's efforts to collect dues and have employees terminated for the nonpayment of dues" This finding is erroneous The 9 December letter made no reference at all to efforts by the Union to terminate employees and it contained no objective facts substantiating the Employer's obvi- ous prediction that a vote for continued unioniza- tion would threaten employees' job security The 15 December letter did attack the Union for seek- ing termination of employees for nonpayment of dues, but the final attachment to the letter was completely unrelated to this attack That attach- ment essentially predicted that if the Employer's employees voted for the Union they would risk CLINTONVILLE SHOE CO 611 suffering the same fate as the employees of the closed Red Owl stores Once again, nothing in this attachment or other parts of the 15 December cam- paign message contained any objective facts dem- onstrating the uncontrollable probability of eco- nomic failure and plant closure if employees chose to retain the Union as their representative In general reference to all three campaign docu- ments and in particular reference to the 14 Decem- ber letter, the Regional Director emphasized the Employer's mention of "a new contract proposal" circulated among employees by the Union during the campaign This alleged proposal was enough in the Regional Director's view to warrant the pre- diction that "given continued poor economics and acceptance of the Union's anticipated proposal, the Employer would be forced out of business" The first problem with the Regional Director's analysis is that it has no applicability to the 9 and 15 December letters, which made no reference, when discussing job security and store closings, to contract proposals by the Union The second prob- lem is that no contract proposal of campaign litera- ture from the Union is in evidence before this Board In exceptions, the Union contends that the "contract proposal" was actually nothing more than campaign literature describing some benefits that unionized employees have received in the foot- wear industry The Union claims that it never pre- sented this list of benefits as a contract proposal to the Employer In the absence of an evidentiary hearing or review of the document in question, the Board must assume facts in the light most favorable to an objecting party before overruling the objec- tion Making the necessary factual assumption, I would find that the evidence falls far short of prov- ing that the Union probably would have included in a contract proposal any or all of the benefits mentioned in its literature In sum, the Employer circulated three campaign letters to all unit employees within a fortnight of the 20 December 1983 decertification election These letters did not predict that employees could lose jobs and the plant could close, regardless of unionization, because the Employer was losing money and suffered from foreign competition Such statements would have clearly been permissi- ble Instead, the letters all contained express or clearly implicit predictions that employees could lose jobs and their plant could close if they voted for continued representation by the Union There are no undisputed objective facts demonstrating the uncontrollable probability of these predicted ad- verse consequences By the Gissel standard, the predictions were impermissible threats For the foregoing reasons, I dissent from my col- leagues' adoption of the Regional Director's report and recommendations The Employer has made ob- jectionable threats interfering with unit employees' free choice, and I would direct a second election